Toolbox Tuesday!!

Does the school have to conduct a manifestation determination prior to a three day suspension?  Let’s assume that the student is within the FAPE-Free Zone, not having been removed from the IEP placement at all so far this year. The student violates the Code of Conduct in a way that would normally call for a short out-of-school suspension. 

Two questions: Does the school have to call for an ARD meeting to make a manifestation determination? Does the assistant principal have to pause for a moment to think about the student’s disability?

The answers to those questions are No and Yes.  A short out-of-school suspension does not amount to a change of placement unless it is piling onto earlier suspensions in the school year. When those removals add up to 11, you might have a change of placement that would call for an ARD meeting and a manifestation determination.  But if this is the first removal, well within the FAPE-Free Zone none of that is necessary. The assistant principal can employ Tool #7 from our Toolbox to order the removal with minimal complications.

But the A.P. is required to pause and reflect.  The very first section of Chapter 37 of the Education Code requires that your Code of Conduct must “specify that consideration will be given, as a factor in each decision concerning suspension, removal to a DAEP, expulsion, or placement in a JJAEP, regardless of whether the decision concerns a mandatory or discretionary action; to….(D) a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct;” 

Of course suspensions are different from DAEP, expulsion or JJAEP placement.  Removal of a student to those places will be a change of placement, requiring a formal MDR at an ARD meeting. But notice that the list of disciplinary actions that require “consideration” of this factor includes suspension, which is capped at three days.

So before ordering a short term removal the campus administrator should pause and reflect for a moment. Does this student understand “the wrongfulness” of the conduct?  Does the disability “substantially impair” the student’s ability to understand that? 

I’m confident that good administrators would do that as a matter of common sense.  Why impose a disciplinary consequence if the student lacks the capacity to understand why this was done?  But if common sense doesn’t work, check out the law. There it is in T.E.C. 37.001(a)(4)(D). 


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Tomorrow:  asking for help from TEA….